Seniors experiencing a loss of autonomy
Homologation: a necessary step before you can use a protection mandate
Did someone close to you prepare a protection mandate while he or she was still capable and appoint you as his or her mandatary? To act in this capacity, you first need to obtain a judgment from the court confirming that the protection mandate has come into effect. This is called “homologation.” Read on for more information.
Is homologation necessary?
Homologation is a necessary step before you can use a protection mandate.
The designated mandatary (or mandataries) cannot exercise the powers specified in the mandate until it is homologated, i.e., approved by a court. These powers are necessary to take care of the senior who has become incapacitated and/or administer his or her property.
The person designated as mandatary can start the process at the first signs of incapacity
The person designated as manadatary is the one who has to start the homologation process. This can be done as soon as the mandatary notices that the loved one no longer seems capable of taking care of himself or herself, exercising his or her rights, or administering his or her property.
It can take several months to obtain a homologation judgment, so it’s important to start the process as soon as possible.
It can also be a complex process. It might be worthwhile to ask for help from a legal professional such as a lawyer or notary to guide you through the steps.
You can visit a legal clinic to get more information on this topic.
Two possible proceedings
There are two ways to homologate a protection mandate.
Go before a notary
You can ask a notary to take care of the process of homologating your protection mandate.
The notary will be responsible for:
- preparing the necessary documents
- informing everyone concerned by your application for homologation
- verifying the validity of the mandate
- assessing the degree of incapacity and reviewing the wishes of the senior who is the subject of the mandate
- submitting the file to the court, which will verify everything and render judgment
If someone contests the application for homologation during the process, the notary will have to withdraw from the file and hand it over to the court.
Bring a proceeding directly before the court
You can choose to bring a proceeding directly before the court without going through a notary.
In this case, you’ll be responsible for preparing and obtaining all the necessary documents and officially informing certain people of your application for homologation.
The court will be responsible for verifying the validity of the protection mandate, the degree of incapacity, and the wishes of the senior who is the subject of the mandate. It can then render judgment.
Please note
The homologation decision must be made in the senior’s interest, i.e., it must respect his or her rights and autonomy. It must also take into account the senior’s wishes and preferences.
Documents to gather before starting the process
Several documents have to be submitted with your application for homologation.
If you have a lawyer or notary, he or she can help you with your legal proceedings.
If you start the proceedings on your own, make sure you have:
- A medical assessment report. A doctor from the public or private sector can prepare this.
- A psychosocial assessment report. A social worker from the public or private sector can prepare this.
- The protection mandate (preferably the original document).
In most cases, you’ll also need to provide:
- An affadavit from one of the witnesses of the signing of the protection mandate.
- A search certificate from the Register of Protection Mandates of the Chambre des notaires du Québec.
- A search certificate from the Register of Wills and Mandates of the Barreau du Québec.
- The act of birth of the senior who is the subject of the protection mandate.
- The identification documents of the senior who is the subject of the protection mandate.
Important
It can take up to a year and half to obtain a medical or psychosocial assessment in the public sector.
The wait can be considerably reduced by going through the private sector, but there are costs involved.
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ANG - L’information présente sur cette page ne constitue pas un avis ou un conseil juridique. Nous vous indiquons ce que dit la loi au Québec de manière générale. Pour obtenir un avis ou un conseil juridique concernant votre situation personnelle, consultez un professionnel du droit.